On Equality: The Anti-Interference Principle

Donald J. Kochan *

Equality —it is a concept that pervades political and social discourse throughout the country, and has done so for centuries. The Declaration of Independence provides, “WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness . . . .” Consider the inscription on the façade of the Supreme Court of the United States—“Equal Justice Under Law”—as an indelible monument to equality in the foundation of our legal system. As Karst describes in his influential article, “[t]he ideal of equality is one of the great themes in the culture of American public life. From the Declaration of Independence to the Pledge of Allegiance, the rhetoric of equality permeates our symbols of nationhood.” Karst may or may not concur with this essay’s ultimate conclusion, but his sentiment frames the debate—defining equality and defining its ideal in light of governing principles.

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*  Associate Professor of Law, Chapman University School of Law. J.D., 1998, Cornell Law School; B.A., 1995, Western Michigan University. I thank Ryan O’Dea for valuable research assistance.

Failed Constitutional Metaphors: The Wall of Separation and the Penumbra

Louis J. Sirico, Jr. *

Metaphors are common devices in judicial opinions. Courts often find them useful in explaining the law and its application. And in recent years, metaphors have sparked an increased interest among legal scholars who are concerned with the metaphor’s role in advocacy and judicial opinion writing. Although courts use metaphors to explain the law, they also use metaphors for a more significant purpose: they use them to create the meaning of the law. For example, when courts use the metaphor “the marketplace of ideas” with respect to the First Amendment’s guarantee of freedom of expression, we understand that freedom of expression was meant to take place in a forum resembling a laissez-faire market. Further, in this environment the best arguments should win out. As Justice John Paul Stevens wrote, “But the First Amendment does guarantee an open marketplace for ideas—where divergent points of view can freely compete for the attention of those in power and of those to whom the powerful must account.” Thus, because the constitutional amendment now promises a marketplace of ideas, freedom of expression furthers essential societal goals and enjoys considerable protection.

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*   Professor of Law, Villanova University School of Law. I wish to thank my research assistant at Villanova Law School, Kathryn Mellinger. Thanks also go to Professors Julie Oseid and Chris Rideout for taking the time to review my manuscript.

Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment

Jeffrey D. Jackson *

Substantive due process is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law, and the main vehicle through which the protections of the Bill of Rights have been incorporated against the states. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. It is followed only in easy cases, and abandoned in hard ones. This practice throws the legitimacy of the entire doctrine into question.

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* Associate Professor of Law, Washburn University School of Law. I would like to thank Bill Rich, Bill Merkel, John Bickers, Linda Elrod, Jim Concannon, Nancy Maxwell, Brad Borden, Michael Schwartz, John Christensen, Rory Bahadur, and Kelly Anders for their helpful comments and input on this article. Thanks also to Washburn University School of Law for its research support, and to Amanda R. Haas, J.D. Candidate, 2011, for her research and input.

Beyond Formalist Sovereignty: Who Can Represent “We the People of the United States” Today?

David Chang*

To so many among us, it appears that our political system is broken. From the rigid partisanship in Congress, to the Senate’s rule of sixty, to the influence of lobbyists, to the vapid commercials and “robo-calls” used to influence voters, to the disproportionate power of small states in presidential primaries and in the Senate, to the disproportionate political influence of profit-seeking corporations, it seems that a system predicated on the people’s rule is badly in need of repair. The Supreme Court’s decision last term in Citizens United v. FEC, striking down a recent congressional effort to curb the influence of corporations in political campaigns, is just the latest occasion when pressing public needs have crashed against the barriers posed by an aging Constitution and a broad range of aging practices that have evolved within its framework.

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*Professor of Law, New York Law School. I would like to thank my colleague Steve Ellmann for his very helpful comments on previous versions of this article. Michael Cirigliano and Melissa Ferraro, both New York Law School Class of 2011, provided able research assistance. Michael Roffer, of the New York Law School library professional staff, provided helpful research support.


Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs

Anthony M. Dillof *

This article attempts to think systematically about what sanctions are deserved for a range of criminal offenses. The offenses considered include both consummate offenses (such as murder) and inchoate offenses (such as attempts), as well as offenses of negligence and crimes of passion. Unlike other theories of punishment, which tend to focus on justifications of the practice of punishment, or the “why” question, the theory presented here focuses on the amount of punishment, that is, the “how much” question: Specifically, “How much punishment, in terms of size and severity, is deserved for a given criminal offense?” The article attempts to answer this question for a variety of crimes in a unified, principled manner.

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*Associate Professor, Wayne State University Law School. J.D., LL.M., Columbia University School of Law; A.B., Harvard University. I thank Steven Winter for his helpful comments and Maricanne Miller for her encouragement.

Blowing Out All the Candles: A Few Thoughts on the Twenty-Fifth Birthday of the Sentencing Reform Act of 1984

J.C. Oleson *

Happy Birthday, Sara!

Yes, I know that your full name is the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, codified at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991 to 998, but that’s an awful mouthful. And really, you’ll always be just “SRA”—Sara—to me. Sara, 2009 was your twenty-fifth birthday and in your honor, throughout 2009 and early 2010, the United States Sentencing Commission (“Commission”) held parties across the country. Yes, I know, officially they called them regional hearings, convened pursuant to the Commission’s authority under 28 U.S.C. § 994(o), but we know that they were really birthday parties for you.

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* Senior Lecturer, Department of Sociology, University of Auckland. J.D., 2001, School of Law, University of California, Berkeley (Boalt Hall); Ph.D., 1998, University of Cambridge; M. Phil., 1995, University of Cambridge; B.A., 1994, Saint Mary’s College of California.